by Margaret Barry
New Field Reports from the Columbia Journal of Environmental Law:
The Regional Greenhouse Gas Initiative: Winners and Losers (April 24, 2013)
Nanoparticles: Regulating a Tiny Problem with Huge Risks (April 23, 2013)
5th Circuit Reverses Itself on Hurricane Katrina Liability Lawsuit (April 22, 2013)
Field Notes from the Superstorm Sandy Catastrophe (January 8, 2013)
Avoiding Albuquerque: How Incentive-Based Green Building Codes May Regulate Appliance Efficiency Standards and Avoid Federal Preemption (December 19, 2012)
Hydraulic Fracturing Case Chart and Hydraulic Fracturing Regulatory Chart published by Arnold & Porter LLP. To receive Arnold & Porter’s Hydraulic Fracturing Legal Updates, click here
Here are the additions to the Climate Case Chart.
FEATURED DECISION
Comer v. Murphy Oil USA, Inc. (5th Cir. May 14, 2013): added to the “Common Law Claims” slide. On May 14, 2013, the Fifth Circuit affirmed on res judicata grounds the district court’s 2012 dismissal of plaintiffs’ claims. Plaintiffs had alleged claims of nuisance, trespass, and negligence on the theory that the defendant energy companies’ greenhouse gas (GHG) emissions contributed to global climate change and exacerbated the effects of Hurricane Katrina. In 2007, the district court had dismissed similar claims by the same plaintiffs against some of the same defendants on the grounds that plaintiffs lacked standing and that the claims were non-justiciable political questions, a judgment that remained untouched after a series of procedural twists during the appeals process. In its May 2013 decision, the Fifth Circuit rejected plaintiffs’ arguments that the district court’s 2007 judgment was not final or on the merits, noting that at no point in the appeals process had the district court’s 2007 judgment been disturbed. The Fifth Circuit also refused plaintiffs’ request for an equitable exception to res judicata, invoking the “well-known rule that a federal court may not abrogate principles of res judicata out of equitable concerns.” The Fifth Circuit also held that the 2007 judgment was on the merits since res judicata principles apply to jurisdictional determinations.
DECISIONS AND SETTLEMENTS
Sierra Club v. United States Department of Agriculture Rural Utilities Service (D.C. Cir. May 28, 2013): added to the “Challenges to Coal-Fired Power Plants” slide. The D.C. Circuit dismissed the appeal by intervenor Sunflower Electric Power Corporation of the district court’s order granting summary judgment to the Sierra Club. The district court had held that the Rural Utilities Service unlawfully failed to prepare an environmental impact statement (EIS) prior to granting approvals and financial assistance to Sunflower for expansion of a coal-fired power plant. The district court remanded the proceeding to the Service for a determination of what further action was needed. The D.C. Circuit determined that the district court’s order was a non-final remand order that was not immediately appealable by a private party and therefore dismissed Sunflower’s appeal for lack of jurisdiction.
Alec L. v. Perciasepe (D.D.C. May 22, 2013): added to the “Common Law Claims” slide. On May 22, 2013, the federal district court for the District of Columbia denied reconsideration of its May 2012 dismissal of plaintiffs’ claims. Plaintiffs had alleged that the federal defendants violated the “federal public trust doctrine” by failing to protect the atmosphere. Relying on a 2012 Supreme Court decision, the court ruled in its 2012 decision that it lacked subject matter jurisdiction because the public trust doctrine was a creature of state—not federal—law. In denying reconsideration, the court’s May 2013 decision rejected plaintiffs’ arguments that they had not been given an adequate opportunity to address the 2012 Supreme Court decision. The district court further found that plaintiffs’ arguments in the motion for reconsideration merely “repackage[d]” arguments that the court had already rejected, or attempted to make new arguments that could and should have been raised previously.
North Coast Rivers Alliance v. Marin Municipal Water District Board of Directors (Cal. Ct. App. May 21, 2013): added to the “State NEPAs” slide. In 2009, the Marin Municipal Water District Board of Directors (Board) certified a final environmental impact report (EIR) for and subsequently approved the construction of a desalination plant that would extract raw seawater from San Rafael Bay, remove solids from the raw water by using reverse osmosis, and discharge a saline brine back into the bay. Plaintiffs challenged the project, and the trial court set aside the Board’s decisions. Among other faults, the trial court found that the EIR failed to adequately discuss the alternative of using green energy credits to mitigate the project’s energy impacts and that the EIR’s conclusion that the project’s GHG emissions would not be cumulatively considerable was not supported by substantial evidence. The appellate court reversed the trial court’s decision. The appellate court determined that because the EIR concluded that the project’s energy impacts would be insignificant, there was no need to discuss green energy credits as an alternative mitigation measure. The appellate court also determined that facts and analysis in the EIR were sufficient to support the conclusion that the impact on GHG emissions would not be cumulatively considerable. The appellate court noted, among other things, that the EIR’s analysis concluded that the project would not interfere with the county goal of reducing GHG emissions to 15 percent below 1990 levels by 2020 and that the Board had adopted a policy requiring offsets for all project-related GHG emissions.
Native Village of Kivalina v. Exxon Mobil Corp. (U.S. May 20, 2013): added to the “Common Law Claims” slide. The U.S. Supreme Court denied the Native Village of Kivalina’s petition for a writ of certiorari. The Village had sought to recover money damages from a number of energy companies for GHG emissions from the companies’ operations that plaintiffs alleged contributed to the erosion of sea ice where the Village is located. The Ninth Circuit had held that the Village could not sue under a theory of public nuisance because the common law claims had been displaced by the Clean Air Act.
Alaska Oil & Gas Association v. Jewell (D. Alaska May 15, 2013): added to the “Petitions Under the Endangered Species Act and Related Litigation” slide. The district court denied motions to alter or amend its January 2013 judgment vacating the Fish and Wildlife Service (FWS) designation of critical habitat for the polar bear. In denying the motions, the court rejected arguments that there were errors in its judgment and noted that defendants and defendants-intervenors could not raise new arguments or previously known and available evidence or rehash arguments previously made. The court also ruled that vacating and remanding FWS’s final rule was a proper remedy even though the court found nothing wrong with 96 percent of the designated area. The decision noted that polar bears “are presently abundant” and “face no immediate or precipitous decline” and cited plaintiffs’ showing that they would be harmed if the critical habitat designation were left in place. The court also indicated that vacating and remanding was appropriate because it would give FWS another opportunity to involve Alaska Native villages, corporations and the State of Alaska in the designation process.
U.S. v. Miami-Dade County, Fla. (S.D. Fla. May 14, 2013): added to the “Force Government to Act/Other Statutes” slide. The court granted the motion by Biscayne Bay Waterkeeper and a resident of Key Biscayne to intervene in a government action against Miami-Dade County to enforce the Clean Water Act and the Florida Air and Water Pollution Control Act. The intervenors had previously submitted a notice of their intent to sue under the Clean Water Act’s citizen suit provision. The governments’ complaint allege unpermitted discharges of untreated sewage, failures to comply with permit conditions, and the creation of conditions that present an imminent and substantial endangerment. The lawsuit was commenced after months of negotiations among the federal, state, and county governments over a proposed consent decree, which the Miami-Dade Board of County Commissioners approved on May 21, 2013. In their motion, which was filed in January 2013, the intervenors contended that the proposed consent decree “if not significantly altered, is not reasonably calculated to ensure Clean Water Act compliance and is contrary to the public’s interest.” Among other things, the intervenors argued that the proposed decree needed to consider climate change impacts including sea level rise.
American Petroleum Institute v. EPA (D.C. Cir. May 10, 2013): added to the “Challenges to Federal Action” slide. The D.C. Circuit granted a motion requesting that this action challenging the third step of EPA’s tailoring rule be held in abeyance pending the U.S. Supreme Court’s disposition of Utility Air Regulatory Group v. EPA and related petitions. The Utility Air Regulatory Group and numerous other parties have filed petitions for writs of certiorari for review of the D.C. Circuit’s June 2012 decision in Coalition for Responsible Regulation, Inc. v. EPA that upheld EPA’s GHG permitting program for stationary sources and other EPA regulation of GHG emissions (see infra).
In re Polar Bear Endangered Species Act Listing (D.C. Cir. April 29, 2013): added to the “Petitions Under the Endangered Species Act and Related Litigation” slide. The D.C. Circuit issued orders denying requests for a panel rehearing and for panel rehearing on the Fish and Wildlife Service decision to list the polar bear as threatened under the Endangered Species Act (ESA). The D.C. Circuit upheld the listing determination on March 1, 2013.
Alliance of Automobile Manufacturers v. EPA (D.C. Cir. April 25, 2013): added to the “Challenges to Federal Action” slide. Petitioners in this proceeding challenge EPA’s rule requiring gas stations to label pumps that dispense gasoline that contains more than 10 percent ethanol. The D.C. Circuit granted a motion to hold the proceedings in abeyance pending the disposition of Grocery Manufacturers Assn. v. EPA, Alliance of Automobile Manufacturers v. EPA, and American Fuel & Petrochemical Manufacturers v. EPA by the U.S. Supreme Court. Parties in those three proceedings challenged EPA’s decision to allow vehicles from model years 2001 forward to use gasoline with up to 15-percent ethanol content; the D.C. Circuit dismissed the challenges for lack of standing. The parties have petitioned the Supreme Court to overturn the D.C. Circuit’s decision.
Southwest Energy Efficiency Project v. New Mexico Construction Industries Commission (N.M. Ct. App. April 23, 2013): added to the “Stop Government Action/Other Statutes” slide. On April 23, 2013, the New Mexico Court of Appeals issued an order for a rehearing. A few weeks earlier, the court had set aside the Commission’s adoption of revised energy codes that repealed energy efficiency requirements. The New Mexico Construction Industries Commission issued a press release on April 25, 2013 to announce the rehearing order, which the Commission indicated “has the effect of suspending the opinion of the court until its final determination.” The press release stated that it would continue to enforce the revised codes while a final decision by the Court of Appeals is pending.
Sierra Club v. San Diego County (Cal. Super. Ct. April 19, 2013): added to the “State NEPAs” slide. In July 2012, the Sierra Club filed a lawsuit challenging San Diego County’s climate action plan (CAP). In April 2013, the court set aside the County’s approval of the CAP. The court held that the CAP was not properly approved because it should have been subject to a supplemental EIR. (The county had concluded in an addendum to the program EIR for the County’s 2011 General Plan Update (GPU) that the CAP fell within the program EIR’s scope.) The court further held that even if the CAP had been properly approved, it failed to meet the mitigation obligations in the program EIR for the GPU, which required the County to set detailed GHG emissions reduction targets and deadlines and to implement enforceable GHG emissions reduction measures. Noting that the CAP describes itself as a “living document” and as a “a platform for the County to build strategies to meet its emission-reduction targets,” the court stated: “There is no time for ‘building strategies’ or ‘living documents;’ as the PEIR quite rightly found, enforceable mitigation measures are necessary now.”
NEW CASES, MOTIONS AND NOTICES
Petition to Undertake Area-Wide Environmental Impact Statement on All Proposed Coal Export Terminals in Washington and Oregon (May 22, 2013): added to the “Force Government to Act/Other Statutes” slide. Earthjustice, on behalf of 11 groups, submitted a petition to the U.S. Army Corps of Engineers pursuant to the Administrative Procedure Act, 5 U.S.C. § 553(e), requesting that the Corps evaluate the cumulative and related impacts of all proposed coal export terminals in Oregon and Washington in a “single, comprehensive, area-wide” environmental impact statement. Among the issues that the petition said should be considered in an area-wide EIS were “effects on global consumption of coal … and resulting increased greenhouse gas emissions.” The petition requested a response from the Corps prior to completion of the scoping process for the proposed Millennium Terminal in Longview, Washington. The petition cited two other pending applications for coal export facilities, the Gateway Pacific Terminal site in Cherry Point, Washington, and the Morrow Pacific project in Oregon, as projects that should be considered in the EIS.
Notice of Intent to Sue for Failure to Issue Polar Bear Status Review and Recovery Plan (May 15, 2013): added to the “Petitions Under the Endangered Species Act and Related Litigation” slide. The Center for Biological Diversity sent a 60-day notice of intent to sue to the Secretary of the Interior and the U.S. Fish and Wildlife Service for failing to conduct a five-year status review and complete a recovery plan for the polar bear. The polar bear was listed as a threatened species under the ESA in 2008 because of declining Arctic sea ice habitat. The notice states that new evidence shows sea ice habitat is declining more rapidly than predicted and that the polar bear’s status now warrants an endangered listing under the ESA.
Notice of Final Action on Petition From Earthjustice To List Coal Mines as a Source Category and To Regulate Air Emissions From Coal Mines (EPA, 78 Fed. Reg. 26,739, May 8, 2013): added to the “Force Government to Act/Clean Air Act” slide. On May 8, 2013, EPA published a notice of final action in the Federal Register to provide notice that on April 30, 2013 Acting Administrator Bob Perciasepe had signed a letter denying a petition submitted by Earthjustice in 2010 to add coal mines to the Clean Air Act section 111 list of stationary source categories. The notice stated that “limited resources” and “ongoing budget uncertainties” forced EPA to prioritize its actions and that it could not commit to undertake the process required for determining whether coal mines should be listed as a stationary source category.
Tennessee Environmental Council v. Tennessee Valley Authority (M.D. Tenn., filed April 25, 2013): added to the “Challenges to Coal-Fired Power Plants” slide. Plaintiffs challenge the Tennessee Valley Authority’s (TVA’s) alleged failure to comply with the National Environmental Policy Act (NEPA) in connection with TVA’s decision in August 2011 to spend more than $1 billion to construct retrofits and associated facilities at its Gallatin plant (the Life Extension Project) to allow TVA to continue to use the plant past a 2017 deadline established in a settlement agreement with EPA and a consent decree between TVA and a number of states and environmental organizations. Petitioners contend that while the Life Extension Project will substantially reduce air emissions from the Gallatin plant, it will still cause a number of significant impacts that could be avoided by shutting the plant down, including significant ongoing emissions of sulfur dioxide, carbon dioxide, nitrogen oxides, and mercury; two “massive” new landfills; and a number of new wastewater streams. Plaintiffs allege, among other things, that TVA committed resources to the project prior to complying with NEPA, that TVA should have prepared an EIS, that TVA failed to consider a legitimate no-action alternative, and that TVA failed to allow for public comment.
Notice of Intent to Sue for Failure to Timely Promulgate New Source Standards of Performance and Regulations Providing Emission Guidelines for Certain Greenhouse Gas Emissions from Fossil Fuel-Fired Electric Utility Generating Units (Power Plants) (April 25, 2013): added to the “Force Government to Act/Clean Air Act” slide. On April 25, 2013, the Conservation Law Foundation sent a 60-day notice of intent to sue to EPA. The notice cites EPA’s failure to promulgate final standards of performance for GHG emissions from new power plants as required by 42 U.S.C. § 7411(b) and to propose and finalize regulations that provide for a plan and emission guidelines for the control of carbon dioxide emissions from existing power plants as required by 42 U.S.C. § 7411(d). This notice follows two similar notices submitted by states and cities and by three other environmental organizations (see infra).
Notice of Intent to Sue for Failure to Promulgate Standards of Performance and Emissions Guidelines for Greenhouse Gas Emissions from Electric Utility Generating Units (April 17, 2013): added to the “Force Government to Act/Clean Air Act” slide. On April 17, 2013, ten state attorneys general as well as the attorney general for the District of Columbia and the New York City Corporation Counsel sent a 60-day notice of intent to sue to EPA. The notice requests that EPA remedy its failure to publish performance standards for GHG emissions from power plants. The entities represented are petitioners in New York v. EPA (D.C. Cir., No. 06-1322), in which they challenged the Bush administration EPA’s decision declining to regulate GHG emissions from power plants and steam generating units. The April 2013 notice contends that EPA’s failures to finalize GHG emissions standards for new power plants and to issue standards for existing power plants are in violation of the Clean Air Act because EPA has failed to perform non-discretionary duties and has unreasonably delayed in taking action to promulgate such standards. This notice comes two days after three environmental organizations sent a 60-day notice asserting the same failures on the part of EPA (see infra).
Notice of Intent to Sue for Failure to Timely Promulgate New Source Performance Standards (NSPS) and Emission Guidelines for Greenhouse Gas Emissions from Electric Utility Generating Units (EGUs) (April 15, 2013): added to the “Force Government to Act/Clean Air Act” slide. On April 15, 2013, Environmental Defense Fund, the Sierra Club, and the Natural Resources Defense Council sent a 60-day notice of intent to sue to EPA for (1) failure to perform its nondiscretionary duty under the Clean Air Act to issue final new source performance standards regulating GHG emissions of greenhouse gases from new power plants within one year of proposing these standards, and for unreasonable delay in carrying out that duty, and (2) failure to carry out its nondiscretionary duty to issue proposed and final emission guidelines for GHG emissions from existing power plants, a duty it is required to execute under section 111(d) of the Act and EPA regulations, and for its unreasonable delay in failing to take such action. Two days later, on April 17, ten states and the District of Columbia and New York City sent a 60-day notice asserting the same failures, and 10 days later, the Conservation Law Foundation sent a similar notice (see supra).
Petition for Additional Water Quality Criteria and Guidance Under Section 304 of the Clean Water Act, 33 U.S.C. § 1314, to Address Ocean Acidification (April 17, 2013): added to the “Force Government to Act/Other Statutes” slide. On April 17, 2013, the Center for Biological Diversity petitioned EPA to promulgate additional water quality criteria under Section 304 of the Clean Water Act to address ocean acidification and to request that that EPA publish information on water quality in order to guide states addressing ocean acidification. The petition provided an overview of the scientific background for ocean acidification, asserting that as the oceans absorb carbon dioxide emitted from the burning of fossil fuels, seawater becomes increasingly acidic, and that the current rate of acidification is faster than anything experienced in the last 300 million years. The petition asserts that EPA has a non-discretionary duty to promulgate standards because the current criteria and guidelines “do not reflect the latest scientific knowledge and fail to protect marine water quality, as required by the Clean Water Act.”
Morning Star Packing Co. v. CARB (Cal. Super. Ct., filed April 16, 2013): added to the “Industry Lawsuits/Challenge to State Action” slide. Petitioners-plaintiffs, which are California residents, businesses, trade associations, and advocacy groups, seek an order enjoining and requiring California to rescind the “revenue-generating auction provisions” of its GHG emissions cap and trade program and a declaration that the cap and trade program’s auction provisions are not authorized by statute or, alternatively, that they constitute illegal taxes under the California Constitution.
Numerous petitions for writs of certiorari have been filed in the U.S. Supreme Court seeking review of the D.C. Circuit’s June 2012 decision in Coalition for Responsible Regulation, Inc. v. EPA, which upheld several aspects of EPA’s regulation of GHG emissions under the Clean Air Act:
- U.S. Chamber of Commerce v. EPA (U.S., petition for writ of certiorari filed April 19, 2013): added to the “Challenges to Federal Action” slide. The U.S. Chamber of Commerce, the American Farm Bureau Federation, and Alaska filed a petition for writ of certiorari seeking to reverse the D.C. Circuit’s upholding of EPA’s 2009 endangerment finding, which serves as the basis for EPA’s regulation of GHG emissions under the Clean Air Act, and EPA’s GHG permitting program for large stationary sources. More broadly, the petition seeks review of the question of whether EPA, having identified “absurd” consequences posed by regulation of GHG under the Clean Air Act, may deem the absurdity “irrelevant” to construction of some statutory provisions and a “justification for rewriting others.”
- Coalition for Responsible Regulation, Inc. v. EPA (U.S., petition for writ of certiorari filed April 19, 2013): added to the “Challenges to Federal Action” slide. A coalition that included the Coalition for Responsible Regulation, Alpha Natural Resources, Inc., and the National Cattlemen’s Beef Association raised the broad question of whether the Clean Air Act and Massachusetts v. EPA prohibit EPA from considering whether regulations addressing GHG emissions under Section 202 of the Clean Air Act “would meaningfully mitigate the risks identified as the basis for their adoption.”
- Southeastern Legal Foundation, Inc. v. EPA (U.S., petition for writ of certiorari filed April 19, 2013): added to the “Challenges to Federal Action” slide. A coalition that included members of Congress, a number of businesses, and various policy and advocacy groups filed a petition for a writ of certiorari asking the U.S. Supreme Court to reverse the D.C. Circuit’s June 2012 decision in Coalition for Responsible Regulation, Inc. v. EPA. The petition presents several questions challenging EPA’s authority to regulate GHG emissions under the Clean Air Act in general and its tailoring rule, in particular.
- The Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation v. EPA (U.S., petition for writ of certiorari filed on April 19, 2013): added to the “Challenges to Federal Action” slide. This petition raises the question of whether EPA was statutorily required to regulate GHG emissions under the Clean Air Act’s Prevention of Significant Deterioration (PSD) and Title V programs, as well as related questions in connection with EPA’s obligation to consider alternative regulatory programs for GHG emissions from stationary sources and with the timeliness of challenges to the application of the PSD program to GHG emissions.
- Texas v. EPA (U.S., petition for writ of certiorari filed April 19, 2013): added to the “Challenges to Federal Action” slide. Citing the regulatory burden imposed on state regulators, a group of states seeks review of EPA’s GHG permitting program for large stationary sources.
- American Chemistry Council v. EPA (U.S., petition for writ of certiorari file April 18, 2013): added to the “Challenges to Federal Action” slide. A group of industry-affiliated organizations seeks review of EPA’s GHG permitting program for large stationary sources.
- Utility Air Regulatory Group v. EPA (U.S., petition for writ of certiorari filed March 20, 2013): added to the “Challenges to Federal Action” slide. The Utility Air Regulatory Group filed a petition for writ of certiorari seeking review of the D.C. Circuit’s upholding of EPA’s GHG permitting program for large stationary sources.
- Pacific Legal Foundation v. EPA (U.S., petition for writ of certiorari filed March 20, 2013): added to the “Challenges to Federal Action” slide. This petition seeks reversal of the D.C. Circuit’s upholding of EPA’s 2009 endangerment finding.
- Virginia v. EPA (U.S., petition for writ of certiorari filed March 20, 2013): added to the “Challenges to Federal Action” slide. This petition also seeks reversal of the D.C. Circuit’s upholding of EPA’s 2009 endangerment finding.
American Fuel & Petrochemical Manufacturers v. EPA (U.S., petition for writ of certiorari filed April 10, 2013); Alliance of Automobile Manufacturers v. EPA (U.S., petition for writ of certiorari filed March 26, 2013): added to the “Challenges to Federal Action” slide. Additional industry groups filed petitions for writs certiorari with the U.S. Supreme Court to review a decision by the D.C. Circuit that the groups lacked standing to challenge EPA waivers allowing more ethanol in fuel for model year 2001 and newer vehicles. (A group of food producer organizations was the first to file a petition for certiorari in February 2013.) The waiver raises from 10 percent to 15 percent the maximum ethanol level in gasoline used in these vehicles. In August 2012, the D.C. Circuit dismissed the lawsuit on standing grounds, holding that none of the industry groups that challenged the decision could show that they were harmed by the rule given that the waivers did not directly impose regulatory restrictions, costs, or other burdens on any of the groups.
